Over 30 states and the District of Columbia have legislation providing citizens access to marijuana. Some states have “de-criminalized” the substance while others have legalized it for medicinal or even recreational purposes. No matter the form, these laws contradict the federal Controlled Substance Act (“CSA”) under which marijuana is categorized as an illegal controlled substance. The conflict between states’ laws and federal law regarding marijuana presents a confusing crossroad for employers.
Last week, the Third Circuit released an opinion in Minarsky v. Susquehanna County, et al., in which it reversed the district court’s award of summary judgment to Susquehanna County and remanded the case for a jury trial on the merits. What is significant about this opinion is the impact that the #MeToo movement has seemingly had on the decision. In a page-long footnote, the Court discusses the #MeToo movement, the pervasiveness of sexual harassment in the workplace, and comments on why sexual harassment victims may not, even with proper mechanisms in place, reasonably be willing to report harassment.
Personnel policies are designed to inform employees of the types of conduct that are acceptable or unacceptable. They, obviously, can only give a general overview and are subject to interpretation and application by the employer on a case-by-case basis. A recent decision arising out of a Tweet by a Vice President of Human Resources shows that such policies will be strictly construed against employers in Pennsylvania.
Pennsylvania’s Commonwealth Court recently issued an opinion, which, while arising in the unemployment compensation arena, may have broader implications for today’s contingent workforce. In Lowman v. Unemployment Compensation Board of Review (January 24, 2018), the Court was called upon to decide whether a claimant, who had been laid off from his job as a behavioral health specialist, engaged in self-employment by becoming a driver for Uber. To perform his duties for Uber, the Claimant used his own phone and car, paid for all related expenses (fuel and maintenance), had to have insurance, a driver’s license, and vehicle registration, set his own hours, could refuse assignments, and could drive for others. Additionally, he earned approximately $350 per week, showing a frequent and prolonged relationship with Uber—not occasional and limited to earning some extra money on the side.
I was recently asked if an employer may require an employee who was taking leave under the Family and Medical Leave Act (“FMLA”) to return to work after the employee was seen working his second job—refereeing school basketball games—while on leave. In this particular case, the employee was taking FMLA leave to care for his daughter, who had a serious health condition.
The U.S. Equal Employment Opportunity Commission (“EEOC”) is the government agency tasked with the responsibility to enforce the federal laws prohibiting discrimination in all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits. Typically, the first steps for individuals seeking to file a charge of discrimination with the EEOC are an initial inquiry and intake interview. These first steps are now made easier through the recently launched EEOC Public Portal. The EEOC Public Portal was piloted in five U.S. cities – Charlotte, Chicago, New Orleans, Phoenix, and Seattle – for six months before it was made available nationwide on November 1, 2017.
As noted in our June 2017 Employment Law Letter, the West Virginia Legislature passed the West Virginia Safer Workplaces Act. The new law, which went into effect on July 7, 2017, generally expands the circumstances under which employers may conduct drug and alcohol testing, with some important limitations. If your business conducts drug or alcohol testing, now is a good time to revisit your policy and consult with your attorney to ensure that it is compliant with the new law. Here, we will summarize the new law, including what it permits and what it prohibits.
The National Labor Relations Board (the “Board”) continues its focus on overly-broad work policies – now in a non-union workplace – with a recent decision against Chipotle Mexican Grill. Although the Board found Chipotle violated the National Labor Relations Act (the “Act”) by (1) maintaining overly-broad social media and work policies, (2) ordering an employee to quit circulating a petition, and (3) firing the employee when he refused to do so, it found the employer did not violate the Act by asking the employee to remove certain tweets from his Twitter account. This case provides additional guidance on what is and is not permissible in work rules, particularly as they apply to social media posts by employees.
Pennsylvania recently enacted a medical marijuana statute. This Act clouds the rights of employers and is another hit to Pennsylvania’s employment-at-will doctrine. Nevertheless, even in Pennsylvania, marijuana remains an illegal substance under the Federal Controlled Substances Act, and employers may continue to enforce their drug-free workplace policies for safety and production reasons, as well as compliance with other contractual or statutory obligations. The new Pennsylvania statute does, however, have implications for employers.